Stewart v. Alton and Southern Ry. Co., 61320

Decision Date02 February 1993
Docket NumberNo. 61320,61320
Citation849 S.W.2d 119
Parties61 Fair Empl.Prac.Cas. (BNA) 263 Leo STEWART, Plaintiff-Respondent, v. ALTON AND SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
CourtMissouri Court of Appeals

Stephen M. Schoenbeck, Schoenbeck, Schoenbeck & Associates, St. Louis, for defendant-appellant.

Joseph L. Walsh, III, Gray & Ritter, P.C., St. Louis, for plaintiff-respondent.

CRANDALL, Presiding Judge.

Defendant, Alton & Southern Railway (Railway), appeals from the judgment entered in this jury-tried, Federal Employers' Liability Act (F.E.L.A.) case awarding plaintiff, Leo Stewart (Stewart), $65,000.00 in damages for injuries caused by Railway's negligence. We affirm.

The evidence, viewed in a light most favorable to plaintiff, discloses that Stewart, a black male, worked twenty-seven years for Railway. Stewart had never been disciplined or reprimanded for his work performance during his career with Railway. The majority of that time, including the period herein at issue, Stewart was a journeyman carman, responsible for repairing Railway's boxcars. Darvin Klein (Klein), a white male, worked with Stewart throughout his career with Railway, and was Stewart's supervisor during the relevant period. The two men had been personal friends until the middle of 1987. Thereafter, Klein began a daily campaign of harassment, verbally attacking Stewart through November 1988, until Stewart was advised by a physician that he would not be able to return to work due to his then diagnosed heart condition.

Klein continually harassed Stewart, rebuking him, for example, when he complained of not feeling well. Stewart testified:

Well, he [Klein] would rush me and push me and he said, 'You have to get the cars going, you're lazy.' And I tell him, 'Well, I don't feel good, I'm hurting,' when he start messing with me, you know, and then I would get these chest pain and I would tell him I didn't feel good, I was hurting and he said, 'Well, this ain't no place for you. If you're sick, go home, nigger.'

Stewart stated further that "[he'd] go somewhere and hide maybe and then he'd [Klein] come find me and chew me out again and sometime I go down in the storeroom and Mr. Jackson [who was in charge of the storeroom] would give me medicine for the headache."

In addition, Stewart's operation of a malfunctioning piece of equipment drew censure from Klein. Thus, "[Klein] would say something like, 'You didn't move the car right. You're stupid. You're dumb. I'm going to fire you, you know. I could get a nine year old nigger and do the job better than that....' "

Stewart attempted on numerous occasions to discuss the situation with Klein directly, seeking to resolve whatever the problem his supervisor was having with him:

I did [tell Klein] several times off and on that I didn't feel good, I said, 'I don't know what it is, but I'm hurting.' And then I would say sometime, 'Why are you picking on me? We used to be friends. We used to be real close. Why pick on me?'

And then he [Klein] said something like, 'Your boy's gone now [referring to Railway's former president and general manager, Mr. Huffman, whom Stewart had previously enjoyed a working relationship until Mr. Huffman's retirement in 1985]. You're mine.' And then he would say, 'Well, if you sick, go home, nigger, we ain't got no place for you out here.' That was a constant thing.

The situation did not improve. In fact, Stewart was also subjected to the racial denigration of his photograph that was reproduced in a calendar, portraying his position as village clerk. According to Stewart, when he saw the calendar hanging in Klein's office sometime in 1988,

my picture had been marked all over and degraded and remarks like nigger and you know, something like that and I asked him [Klein] who had did it and he never would tell me and then he told me to get out of there. Somebody had messed with it so I took the calendar, tore it up and threw it in the trash.

Again Stewart sought to resolve the situation with Klein. But in response to Stewart's inquiry as to the nature of the problem, Klein purportedly replied that "whenever [Stewart] stopped thinking [he] was more than [Klein], that he [Klein] would treat [Stewart] like [he] wanted to be treated."

As a result of such encounters with his supervisor, Stewart experienced chest pain, muscular aches in his shoulders, and headaches. Yet Stewart chose not to file a formal grievance against Klein, as he "didn't want to rock the boat." Rather, he endured the daily incidents and took aspirin to alleviate the chest pain. The dissipation of physical symptoms at night, while away from his job, also contributed to Stewart's decision to not pursue any recourse. Ultimately, however, Stewart saw his doctor during his Thanksgiving vacation in 1988, learning then that he had heart disease and would no longer be able to work.

Stewart brought this action against his former employer, Railway, pursuant to F.E.L.A., 45 U.S.C. § 51, which provides in pertinent part:

Every common carrier by railroad while engaging in commerce between any of the several States or Territories ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier ....

(emphasis added).

The coverage of the statute is defined in broad language, which has been construed even more broadly. Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-562, 107 S.Ct. 1410, 1413-1414, 94 L.Ed.2d 563 (1987) (footnotes omitted). See Ackley v. Chicago and North Western Transp. Co., 820 F.2d 263, 266 (8th Cir.1987). This result obtains because Congress intended the Act to be remedial, Ackley, 820 F.2d at 266, favoring protection of the nation's railroad workers. Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir.1987). Recovery under the Act is not limited to what may be considered more traditional railroad injuries. See Urie v. Thompson, 337 U.S. 163, 181-182, 69 S.Ct. 1018, 1030, 93 L.Ed. 1282 (1949).

On appeal, Railway contends the trial court erred in denying its motion for judgment notwithstanding the verdict for three reasons: (1) plaintiff failed to prove that he was subjected to unconscionable abuse; (2) plaintiff failed to prove that his injury was reasonably foreseeable; and (3) there was no credible evidence that plaintiff's chest pains were either caused or aggravated by any tortious conduct on the part of the defendant.

Determination of whether plaintiff met his burden in making a submissible case is governed by federal law. Hertzler v. Burlington Northern Railroad Co., 720 S.W.2d 762, 766 (Mo.App.1986); White v. St. Louis-San Francisco Ry. Co., 539 S.W.2d 565, 569 (Mo.App.1976). The Act is an avowed departure from the common law. Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 329, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958). The test under F.E.L.A.

is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury ... for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes.... Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury.... Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities.

Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506-507, 77 S.Ct. 443, 448-449, 1 L.Ed.2d 493 (1957) (emphasis added; footnotes omitted).

Thus, in passing on the submissibility of plaintiff's case, to the maximum extent proper, questions arising under F.E.L.A. shall be left to the jury. Hertzler, 720 S.W.2d at 766. Only where there is a complete absence of probative facts to support the jury's verdict does reversible error result. Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946); Wiser v. Missouri Pacific Railroad Co., 301 S.W.2d 37, 44 (Mo.1957).

"Negligence" under the Act is a federal question, not controlled by the varying interpretations of negligence under state law applicable for other purposes. Rogers, 352 U.S. at 507 n. 13, 77 S.Ct. at 449 n. 13; Urie, 337 U.S. at 174, 69 S.Ct. at 1027. To make a submissible case, Stewart had to establish that Railway had a duty to provide him with a reasonably safe place to work, that Railway breached its duty of care, that such lack of due care played some part, however slight, in producing Stewart's injury and that the injury was reasonably foreseeable. See Ewing v. St. Louis Southwestern Railway Co., 772 S.W.2d 774, 775-776 (Mo.App.1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 724, 107 L.Ed.2d 744 (1990).

Railway does not contest that it owed Stewart the duty of providing him with a reasonably safe work environment. Under F.E.L.A., Railway was required to eliminate those dangers which could be removed by the exercise of reasonable care. See Qualls v. St. Louis Southwestern Railway Co., 799 S.W.2d 84, 86 (Mo. banc 1990), cert. denied, 499 U.S. 961, 111 S.Ct. 1585, 113 L.Ed.2d 650 (1991). "F.E.L.A. negligence" exists, and Railway may be held liable, "if the employer knew or should have known its standard of conduct was inadequate to protect its employee from injury." See Hertzler, 720 S.W.2d at 766.

Negligence of the employer can be founded upon the acts of a fellow employee causing injury. Green v. River...

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